EDITOR’S NOTE: First posted at The Shipler Report.
The truly serious problem behind the controversial memo released by the House Intelligence Oversight Committee is not so much political as it is constitutional. It is the flawed process of secret-intelligence warrants that enable government authorities to do end runs around the Fourth Amendment. That broader issue underlies the question of how the FBI got a warrant to eavesdrop on Carter Page, one of President Trump’s campaign aides.
Now that Republicans have suddenly discovered their keen interest in civil liberties (albeit for political reasons), they might well revisit their unyielding support of the loosened standards for obtaining warrants that they pushed through in a panic right after 9/11. With the acquiescence of Democrats, the Patriot Act—opposed by only one senator, Russ Feingold of Wisconsin—shot holes through the sensible restrictions on monitoring Americans’ communications.
First, a bit of history. The Framers, reacting to the British use of writs of assistance to search whole towns for contraband in colonial times, wrote the Fourth Amendment to guard against government intrusion into a citizen’s zone of privacy. Although the word “privacy” does not appear in the Constitution, it is heavily implied and is woven into numerous court opinions.
Significantly, the Bill of Rights assumes that the people possess rights inherently, not that they are given rights by the government. The Fourth Amendment declares: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The terms “unreasonable,” “probable cause,” and “particularly” are among the most commonly debated in criminal cases where searches produce evidence that defense attorneys seek to suppress. Did the police officer act reasonably? Did she have probable cause to believe that such evidence of a crime would be found at a specific time and place? Was the search narrowly tailored to focus only on that purported evidence? And so on.
During the war on drugs, the Fourth Amendment has been severely undermined by court opinions giving authorities increasing latitude to search without warrants. But most dramatic has been the evasion of the Fourth Amendment to combat terrorism since 9/11.
Contrary to the upstanding portrait of a neutral FBI being painted by Democratic leaders during the current Russia investigation, the agency—and certain agents—have been driven by agendas. The FBI has zealously used informants to lure hapless wannabes into fictitious terrorist plots, then prosecuted them with ostentatious publicity; it has filtered and warped evidence to support stubborn theories of crimes; and during the Cold War, it conducted illegal, warrantless surveillance and played outrageous tricks on dissidents, even once attempting to provoke Martin Luther King Jr. into suicide.
In the 1970s, after the FBI, the CIA, the IRS, and other agencies were revealed to have spent decades spying on anti-war activists, civil-rights leaders, Black Panthers, and other American activists, Congress enacted several protections. One was the Foreign Intelligence Surveillance Act (FISA) of 1978, which set rules for monitoring citizens without having to get ordinary criminal warrants.
The basis for a criminal warrant, including law enforcement’s sworn affidavits to a judge, can eventually be challenged by the defense in open court. A FISA warrant cannot. It remains secret unless the evidence it uncovers is used in a criminal case. This difference is huge, because it allows the FBI to avoid the standard of probable cause. Agents can use a secret warrant with no evidence of a crime to collect enough information to convince a criminal-court judge that there is probable cause to issue an ordinary criminal warrant. The original rationale for the FISA warrant may never be known to the defendant.
This wasn’t supposed to happen under the original 1978 act, which allowed the secret warrants only for “the purpose” of intelligence gathering, usually to catch spies or to spy on foreign governments by wiretapping, bugging, and doing covert searches of homes and offices without probable cause. The Patriot Act changed the phrase to “a significant purpose,” which diluted the intelligence prerequisite and enabled the monitoring in ordinary criminal investigations.
To get a clandestine FISA warrant on a citizen or legal resident of the United States, the government needs to show probable cause—not that criminal evidence will be found, but that the person is an agent of a foreign power or a listed terrorist organization. A warrant granted must be renewed by the judge every 90 days, in response to further filings by the government. The Page warrant was renewed three times, according to the Republican memo, suggesting that evidence of his involvement with Russian officials had been obtained.
Less than 1 percent of warrant applications are turned down by the Foreign Intelligence Surveillance Court, which is made up of 11 federal district court judges who serve one week at a time in Washington considering FISA applications. But the low rejection rate shouldn’t be taken to mean that the judges have nothing but rubber stamps in their hands. Officials involved have described a vigorous back-and-forth in some cases, with judges sending applications back for more information; a typical warrant application can be an inch thick.
Furthermore, under legislation passed during the Obama administration, the secret court now allows designated “friends of the court” to oppose warrant requests. Proceedings are still secret, however.
In the Carter Page case, we cannot know the truth of the Republicans’ assertions of political bias by the FBI without seeing the entire FISA warrant request, which remains classified. Although the FBI has been occasionally scolded in the past for inadequate or misleading filings before the FISA court, it’s not clear that such is the case here. The chairman of the Intelligence Committee, Devin Nunes, has reportedly not read the application, so the memo released under his name cannot be taken as the height of intellectual honesty.
The memo argues that the FBI withheld from the judge the fact that the Democratic National Committee and Hillary Clinton’s campaign had paid for a salacious and disturbing dossier on Trump’s visits to Moscow, a collection of unverified reports from Russian officials compiled by Christopher Steele, a respected former British spy. If true, the events described in the dossier could give the Russians blackmail leverage over Trump.
Democrats on the Intelligence Committee counter that the political background of the document was, in fact, conveyed to the judge. There’s no telling whether knowing or not knowing of the Democrats’ involvement would have affected the judge’s decision to issue the surveillance warrant and renew it three times. Judges are fully accustomed to informants and witnesses with axes to grind, and many ordinary criminal warrants are issued on the basis of “snitches” looking for payoff money from the police or leniency if they’re facing charges.
In addition, the Steele dossier is said to be only one of a series of telling pieces of the FBI’s argument for a warrant. But could the surveillance have been done under the original FISA, before it was amended by the Patriot Act? Perhaps, if the FBI persuaded the judge that it would be to gather intelligence only. If the evidence from its wiretaps is eventually used in a criminal proceeding against Page, however, the case would illustrate the too-broad scope of FISA.
Look past the huffing and puffing of the politicos and the propagandistic attempts to discredit the Russia investigation in advance, put aside your pro-Trump or anti-Trump sentiments, and the essential question remains: Should the FBI have been able to eavesdrop on Carter Page without showing probable cause that evidence of a crime would be found? Not if you respect the Fourth Amendment.